U.S. S. China Sea Provocation … What Next?

This story has been brewing for a while.  The U.S. has been saying for months that it is going to challenge China’s “increasingly assertive claims” in the S. China Sea … militarily – by sailing warships through some of the most sensitive parts of the S. China Sea. Many have bemoaned when the U.S. appeared to deliberate and delay and delay.  But yesterday, the U.S. finally sailed a destroyer right through an especially “sensitive” area of the S. China Sea – the waters surrounding Zhubi Reef – a site where China has been dredging and building artificial islands over the last few years.

Here is how the NYT – in a article titled “Challenging Chinese Claims, U.S. Sends Warship Near Artificial Island Chain” – reported the story:

WASHINGTON — A United States Navy destroyer entered waters near the Spratly Islands in the South China Sea late Monday, Defense Department officials said, directly challenging China’s claims that the artificial island chain is within its territorial borders.

The Lassen, a guided missile destroyer, sailed within 12 nautical miles of the islands, making a long-anticipated entry into the disputed waters, an American military official said. American officials did not inform their Chinese counterparts as they planned the provocative maneuver, saying that to do so would have undercut their message.

“You don’t need to consult with any nation when you are exercising the right of freedom of navigation in international waters,” John Kirby, the State Department spokesman, said at a news conference.

Mr. Kirby said that such a challenge to what he called a questionable sovereignty claim was “one of the reasons you have a navy — to be able to exert influence and defend freedom of navigation on international waters.”

China has been reclaiming land in the South China and East China Seas for several years, and the projects in the vicinity of the Spratlys have come under increasing criticism from the United States and its regional allies, including the Philippines. The United States and several Asian nations dispute the legitimacy of the islands built by China.

As reported by Foxtrot Alpha, China responded by sending destroyer class ships of its own to tail the Lassen:

Hours ago the USS Lassen made its way within 12 miles of China’s man-made islands near Subi Reef, part of the Spartly Islands archipelago. During its roughly 72 mile freedom of navigation mission, the American Arelaigh Burke Class Destroyer was shadowed closely by the Chinese Type 052C guided missile destroyer Lanzhou and the Sovremennyy Class patrol destroyer Taizhou.

China could have used one of its Coast Guard ships or smaller patrol craft to execute the same mission, but decided to use one of its most powerful ship instead. This was a clear and loud message that China also has hard power in the region regardless of the state of its island outposts and it can instantly respond on a military level to American power-plays.

China’s use of a Type 052C guided missile destroyer, one of their most modern surface combatants with roughly the same mission as the American Arleigh Burke Class destoyer (the USS Lassen’s class) is interesting as it represents a hard-military response to America’s challenge to China’s territorial claims.

During the Lassen’s five hour transit, the crew were continuously warned by the shadowing destroyers to leave Chinese waters immediately. This stance was echoed shortly after the Lassen left the area when the U.S. Ambassador to China was summonsed over the incident, with Chinese officials calling it “irresponsible” and “illegal,” adding that “China will resolutely respond to any country’s deliberate provocations.”

Xinhua responded in a commentary titled “U.S. provocation in South China Sea an irresponsible game of brinkmanship dangerous to regional stability“:

BEIJING, Oct. 27 (Xinhua) — A U.S. warship sailed within 12 nautical miles of Chinese islands in South China Sea on Tuesday in a flagrant — and baseless — provocation against China’s legitimate rights in the body of water.

The USS Lassen’s operation, carried out in the name of freedom of navigation, was nothing but a willful and harmful game of brinkmanship mounted to flex U.S. muscles at China’s doormat and reassert Washington’s dominant presence in the region — at the cost of injecting more uncertainty into regional stability.

…

With trillions of dollars’ worth of goods traversing the patch of water every year, South China Sea is vital both to global trade and to China’s development. Beijing has no reason to make trouble that might block one of its own arteries of trade.

On the other hand, such aggressive behavior is highly irresponsible and dangerous. First of all, it breaches Washington’s pledge of not taking sides in the South China Sea disputes.

Gimmicks like conducting patrols around South China Sea features built up by Vietnam and the Philippines — which have illegally occupied some of China’s islands — cannot conceal to which side the United States is tilted.

In parallel, it runs counter to the consensus Xi and U.S. President Barack Obama has built on fostering a new model of major-country relations between the two global giants characterized by no conflict, no confrontation, mutual respect and win-win cooperation.

Such provocations threaten to worsen the already gaping deficit of mutual trust between Beijing and Washington, which stems partly from the latter’s frequent close-in air and sea surveillance and reconnaissance against China.

Also, it is poised to further muddy the waters and undermine rational endeavors in seeking a peaceful and early settlement of the chronic South China Sea rows and thus eliminating the root causes of tensions and troubles for good.

Here is my take:

Foremost, despite rhetoric from both side that the U.S. has violated Chinese territory, I am still trying to figure out exactly what is violated. Specifically, what “territory” exactly – e.g. “territorial sea” vs. Exclusive Economic Zone (EEZ) – is at issue and to what extent has the U.S. side “violated” that sovereignty?

Since the UNCLOS is the operating guide here ¹, let’s start there.  Article 2, for example, provides that:

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Many media sources – Chinese and U.S. – has presumed that when the Lassen sails within 12 nautical miles of China’s artificial island, the U.S. challenged China’s territorial claims.  But why?

It is highly unlikely that China’s assertion of “territorial seas” is based on status of China’s newly built island.  After all, Article 60 of the UNCLOS explicitly provides that:

Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.

The fact that Lassen got within 12 nautical miles of Zhubi reef should thus means nothing – since Zhubi reef previously as a completely submerged could not per se support a territorial sea.

The Chinese no doubt understand this, as acknowledged in this global times article.  The UNCLOS provides many technically complex, contested and many non-trivially ambiguous regimes for nations to define baselines … including (for example) baselines around islands, archipelagos, etc. – taking into account of regime of historical polity, economic activities, etc.   China’s territorial claims around Zhubi hinge on the larger issues of how China applies this large body of rules to its claims in the S. China Sea. ² Yet much of Chinese media confusingly continues to make references to 12 nautical mile surrounding Zhubi facilities as some sort of a red line.

Whether the area around Zhubi reef is “territorial seas” or EEZ (or perhaps historic waters, as I personally argued in a previous paper) makes a huge difference to determining what type of Challenge the U.S. posed to China in sailing through the waters surrounding Zhubi reef.

Let’s first presume it is “territorial seas” – as it imposes a much higher level of restriction on freedom of navigation than EEZ.  According to Article 17 of the UNCLOS:

Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.

Article 18 further provides:

1. Passage means navigation through the territorial sea for the purpose of:  (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters….
2. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

And Article 19 provides:

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of wilful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

The U.S. likes to say that by sailing the Lassen through the waters around Zhubi reef, it has directly “challenged” China’s territorial claims.  But just a month or so ago, the PLA Navy actually had sent five navy ships through U.S. territorial waters off Alaska, and the U.S. Navy was good with that, confirming that the Chinese had passed U.S. waters in accordance with “International Law.”

So why is Lassen’s sailing through Chinese “territorial seas” now considered a “challenge” to Chinese sovereignty claims?

According the NYT article already linked above, there is one major difference:

American military officials said that the two maneuvers were not comparable, citing international maritime laws that allow passage such as the Chinese transit near Alaska if there is no other passageway for a ship to reach its destination.

In the case of the Spratly Islands, one American military official said, there were several other routes that the United States destroyer could have used, but the military deliberately chose to enter the waters that China claims as its territory.

But this distinction makes no sense: nowhere in the UNCLOS does it provide that freedom of navigation is conditioned only where there being no other possible paths for one to go from point A to B.  (Imagine countries arguing with each on when there really are no other possible paths from A to B!)

The closest I can find the UNCLOS to conditioning “freedom of navigation” on whether there are other possible paths involves providing “land-locked” nations passage to the open seas (Article 17) and providing navigation to go through the seaward side of an island that lies off the coast of a nation’s mainland (Article 38).  Neither of these situation applies to the situations above.

Still, I can sympathize with the Chinese feeling that this is a challenge.  After all, the very theatrics of the “FONOP” – designed to contain China – is taken very seriously by China to be a “threat.” If it’s really about freedom of navigation, why not ask a few commerce ships to traverse through the area with cargo and see if the Chinese navy stops them.  If they don’t, point is proven: there is no freedom of navigation issue in the S. China Sea.  There is no need to send a warship.

Yet … let’s also keep things in perspective: the Lassen did not travel to Zhubi reef clandestinely to conduct surveillance … or to conduct drills involving live weapons … or to actually threaten to fire on Chinese targets.  The U.S. has telegraphed the “mission” for months and has gone to great length to say that this just is a “freedom of navigation” operation – i.e., it wasn’t going to do much except to sail through.   By all reports, the U.S. did enter and leave the area expeditiously.

So at least on a legal level, I don’t think what the U.S. did prejudice any of China’s claims in the S. China Sea at all.  This is a political challenge, and there should be no rush to jump to action.  In my view, China should deliberate carefully, and use the opportunity to consider (or re-consider as the case may be) some of the strategic consequences.

First, I think Chinese media (and certain officials) should stop making a big deal of the notion of 12 nautical miles.  China’s claim of maritime territory should not be based on an artificial island.  It’s not just that the UNCLOS says so,  but because if nations can claim territorial seas based on dredging, other nations – including Japan – would get into this dredging contest to legally claim maritime territory … which is not in the long-term interest of China, as it depends on freedom of navigation around the world for commerce.

Second, China should drop its interpretation that the EEZ restrict military activities and at the same time step up efforts to come to an understanding with the U.S. that it does not appreciate U.S. naval activities in the S. China Sea.  To that end, the meeting with each navy’s chiefs following Lassen’s operation is a good direction, although I don’t think it will yield immediate fruit.

While China’s EEZ interpretation – followed by a number of countries – is convenient for providing a legal basis for insisting U.S. stop snooping in the S. China Sea (based on its most recent submissions, its historic 9-dashed line also bounds China’s current EEZ claims), I believe it to be shortsighted.

Japan has often talked strategically of a “First Island Chain” to contain China militarily.  Given Japan’s huge claims of EEZ, China’s no military activity in others’ EEZ interpretation would effectively block out Chinese navy’s blue water access to the Pacific.  Many other nations – including the U.S. – also has huge claims of EEZ arising from islands they possess throughout the world.  Does China really want to corner its future this way?

Rather than on trying to build restrictions on Freedom of Navigation into international law, China should play realpolitik more.  Through the ADIZ fiasco of last year, we have learned that the U.S. navy did not recognize any other nation’s ADIZ except through mutual bilateral agreements with each country.  Similarly, the U.S. is likely not to accept any restrictions on its naval freedom of navigation except through bilateral negotiations.  As Chinese military power grows, there will come a day when U.S. – for its own interests – begin to respect Chinese interests.  China’s navy then would want as much Freedom of Navigation as the U.S. does today.  The problem for China today is mainly the lack of respect from the U.S. side.  It is a political and military issue, not an intrinsic legal issue involving law of the sea per se.

China’s accepting that the UNCLOS allows for military activities to take place in another’s EEZ doesn’t mean that one loses any legal basis for protesting such activities in those waters.  Under customer international law, a nation always has a right to self defense – including on the high seas.  Just as the U.S. stopped Soviet ships on the high seas, just as the U.S. recently sent naval ships to block arms shipments to Yemen, just as the Israelis navy regularly seize weapons shipments it claim is headed to Palestine, so too has China ground to take actions against activities it deems threatening – whether they be near its shores, within its EEZ, or on the high seas.  The reason the Lassen shouldn’t sail right to the Zhubi reef facilities is the same why U.S. would not openly welcome Chinese naval ships from sailing right up to its carrier, or tolerate foreign ships from coming too close to its oil rigs or other maritime assets.

If the Chinese government more strongly and deems that there ought to be a legal basis for nations not to snoop in the S. China Sea, for China to set rules of conduct there, then the Chinese government must articulate a legal basis, starting with – I believe – officially declaring its 9-dashed line to represent boundaries to the “historic waters” of China.  This is a position I had argued in a previous paper (as many Chinese historians and legal scholars would probably argue), but a position that the PRC, in its most recent whitepaper on the S. China Sea, completely avoided.

To solve the S. China Disputes, to control the destiny of S. China Sea, China needs to articulate its vision more clearly.  To do that, it must articulate its displeasures more clearly.  I feel the current legal stance and terminology used shows a muddled vision.

The U.S. and its allies want to raise the specter of Freedom of Navigation.  What does China want?  Does it merely demand that its interests be respected in the S. China Sea because traditionally it is its historic waters?  Or does it want to lead a global movement to demand that all the world’s oceans be more closed to military activities – thus making all oceans more “peaceful” – or at least more free from military activities of the world’s “hegemons”? These are important issues that China must decide on now … or soon.  As China delays, others will put words in its mouth about the nature of its claims and its intent – which is good neither for China … nor the world.